(a) One is freed from any obligation to attach tsitsit to a talit she'ula (a borrowed four-cornered garment) for the first thirty days. Nevertheless, should one desire to attach tsitsit within the first month, based on Rabbeinu Tam's principle he may do so and even recite the appropriate benediction. See Tosafot (s.v. "Talit she'ula"), Rosh (Chapter 8, sec 26; see also Ma'adanei Yom Tov, ad loc. note 20) and Tosafot haRosh to Hullin 110b; Piskei Tosafot (no. 160) and Nimukei Yosef (Hilkhot Tsitsit, s.v. "Talit she'ula") to Menahot 44a; Semak 31, gloss 20 of Rabbeinu Perets (in the name of Tosafot Shants); Haggahot Maimoniyyot, Hilkhot Tsitsit 3:4, no. 4; Semag, end of Asei 26; Beit Yosef, Darkei Moshe haArokh, Magen Avraham (no. 5), Be'er Heitev (no. 5), Eliyya Zuta and Rabba (no. 5), Mishna Berura (no. 9), Arukh haShulhan (no. 8) and Shulhan Arukh haRav (sec. 5) to O.H. no. 14; R. Jacob of Lisa, Derekh haHayyim, Din tsitsit she-asa'an eino yehudi, ve-isha ve-katan, ve-din talit she'ula, no. 4; R. Abraham Danzig, Hayyei Adam, sec. 11, no. 21; R. Mordechai Eliyahu, Sefer Halakha, 1:7 sec. 18; R. Jehiel A. Zilber, Birur Halakha, Y.D. sec. 286, pp. 253-268; R. Aaron Aryeh Schechter and R. Uri Aurbach, Pit'hei She'arim, Y.D. sec. 286, no. 267; Birkhot haMitsvah keTikunan, p. 55, no. 7. In light of the discussion above at notes 19 and 20, several posekim have raised a caveat regarding use by Sephardic Jews of Rabbeinu Tam's position to allow reciting a berakha in the case of talit she'ula within thirty days. See R. Mordechai Carmi, Ma'amar Mordekhai, O.H. sec. 14, note 14; R. Joseph Hayyim, Od Yosef Hai, Lekh Lekha, 1; R. Judah Ayash, Resp. Beit Yehuda, Y.D. sec. 19; Yalkut Yosef, She'eirit Yosef, Part 1, sec. 14, Din Talit She'ula, no. 1, note 1. See also section 1b below.
(b) One is freed from any obligation to affix a mezuza to the doorpost of an apartment rented in the Diaspora for the first thirty days. Nevertheless, should one desire to affix a mezuza within the first month, he may do so and even recite the appropriate benediction. See R. Abraham Oppenheim of Butchatch, Eishel Avraham, O.H. sec. 14, no. 2; Pit'hei Teshuva, Y.D. sec. 286, no. 17; Hayyei Adam, kelal 15, no. 22 and R. Benjamin Jehiel Zilber, Beit Barukh, ad loc. no. 34 (see also appendix Kunteres haMezuza 286:22, sec. 192); R. Hayyim Hezkiah Medini, Sedei Hemed, Kelalim, Mem, 112-115; Resp. Igrot Moshe, Y.D. sec. 179; R. Yaakov Y. Blau, Hovat haDar, sec. 7, no. 7; Birur Halakha, Y.D. sec. 286, pp. 253-268; Birkhot haMitsvah keTikunan, p. 305, no. 5, sec. 2. Tosafot, Hullin 110b, s.v. "Talit she'ula," question whether the application of Rabbeinu Tam's principle to talit she'ula (and by analogy, mezuza before thirty days) is appropriate. After all, despite the exemption of the women, the men are still obligated; hence, the deficiency is in personam (ba-gavra). In the case of talit she'ula and mezuza, however, no one under such circumstances is obligated before thirty days, hence the deficiency would seem to be in rem (ba-heftsa). Despite this possible distinction, Tosafot and other posekim (in this and the previous section, section 1a) conclude with "ha-meikil lo hifsid" (he who is lenient and permits recitation of the berakhot has lost nothing). R. David Zvi Solomon Eibeschutz, Levushei Serad, Peri Megadim, Eishel Avraham (on Magen Avraham, O.H. sec. 14, no. 5), and Torah Temima, Deut. 22:12, note 125, explain Tosafot's lenient conclusion by noting that the owner of the talit or the dwelling remains obligated; hence, the deficiency in these cases, too, is in personam as it is with women. Cf. R. Zvi [Hershel] Schachter, Nefesh haRav (Jerusalem: Reishit Yerushalayyim, 1994), p. 104; R. Hayyim Dov Altuski, Hidushei Batra-Haga beMishna Berura, O.H. sec. 14, note 9.
(c) and (d) R. Samson of Coucy, supra, text and note 41, and Radbaz, supra, text and note 45, extend Rabbeinu Tam's principle to the recitation of Hallel on Rosh Hodesh and the reading of the Megilla with its attendant benedictions, respectively, in situations where no minyan is present. R. Joseph Engel, Gilyonei haShas, Megilla 5a, finds difficulty with these attempts to extend Rabbeinu Tam's principle. The Torah exempted women from mitsvot asei she-ha-zeman geramman; nevertheless, women have the option to perform these commandments, and, according to Rabbeinu Tam, even to say the appropriate benedictions, should they so desire. In the cases of Hallel and Megilla, on the other hand, the individual is fully obligated whether or not there is a minyan present. The minyan, however, is a precondition to the fulfillment of these rituals; in its absence, these rituals simply cannot be performed as prescribed. In order to resolve this difficulty, we would like to suggest a different understanding of Radbaz's responsum. In our opinion, Radbaz is not discussing whether or not one could read the Megilla with the blessing of "al mikra Megilla" absent a minyan. Rather, Radbaz's question merely addressed the issue of whether one could recite the other two benedictions of "she-asa nissim" and "she-he-hiyyanu." These latter two berakhot, argues Radbaz, were not composed as blessings over the Megilla, but rather in recognition of the miracle of Purim. Consequently, these benedictions theoretically could and should be recited even if no properly mandated Megilla reading were available (-due to the lack of a minyan-according to those authorities whose opinion Radbaz is analyzing). However, writes Radbaz, since these two benedictions were enacted to be said-along with "al mikra Megilla"-together with the Megilla reading, when there is no required Megilla reading, one is exempt from reciting them. In accordance with Rabbeinu Tam's principle, though, Radbaz argues that one may nevertheless recite these berakhot optionally. As for the benediction of "al mikra Megilla," here R. Engel is absolutely correct: where there is no minyan, there can be no properly mandated Megilla reading and therefore no "al mikra Megilla" either. One is not merely exempt from "al mikra Megilla"; there is no place for the berakha, ab initio. Rabbeinu Tam's principle is, in this case, irrelevant. Accordingly, as a proper reading of Radbaz's responsum will reveal, Radbaz never even entertained its application to the berakha of "al mikra Megilla."
(e) An onen (note 30) is normally freed from fulfilling all positive commandments. Nevertheless, the noted halakhist, R. Joseph Te'omim, Peri Megadim, O.H. sec. 71, Mishbetsot Zahav 3 and Rosh Yosef, Berakhot 17b, s.v. "Mishna. Mi she-meito," allows the optional recitation of Shema with its benedictions by an onen (provided he has someone to take care of all the burial arrangements).
(f) Maharah Or Zaru'a, responsum no. 183, maintains that yeshiva students dorming with their teachers are freed of fulfilling all positive commandments. Nevertheless, they may recite the appropriate benediction before performing the mitsvot of their choice.
(g) R. Hayyim D. S. Zorapa, Resp. Sha'ar Shelomo, Y.D. sec. 109, p. 109 column 3, permits non-relatives to tear keria with a berakha.
(h) R. David Samuel haLevi, Turei Zahav (Taz), O.H. sec. 46, no. 7, invokes Rabbeinu Tam's principle in his discussion of birkat ha-noten la-ya'eif ko'ah.
(i) R. Aaron Worms, Me'orei Or, V, Be'er Sheva (published 1790), hashmatot to Berakhot 46a, p. 65a, raises the possibility of an optional two-man zimmun based on R. Tam's ruling.
(j) R. Moses Shternbuch, Mo'adim uZemanim, IV, sec. 288, p. 53, argues that one who became Bar Mitsvah during the counting of the Omer may continue counting because of Rabbeinu Tam's principle.
(k) R. Menashe Klein, Haggada Magid Mishne, p. 168, indicates that only kohanim are obligated in the ritual slaughtering of sacrifices, although non-kohanim are permitted to do so. Nevertheless, an Israelite who ritually slaughters a sacrifice may make the appropriate benediction.
(l) R. Samuel Elimelekh Turk, Resp. Kerem Tsvi, sec. 43, invokes Rabbeinu Tam's principle in his discussion of keriat haTorah in a minyan on a day not ordained by Hazal.
(m) For additional examples and discussion, see Resp. Yabia Omer, O.H. I, sec. 28, nos. 5,6; I, sec. 39, no. 12 ff.; and V, sec. 43.
The above posekim clearly take issue with Rabbeinu Jonah Gerondi, Sha'arei Teshuva, Gate III, secs. 187-188, who derives from the asperity of the Talmud's censure (Sota 41b) that one is forbidden to praise non-halakhic actions even if it means placing oneself in "danger" (generally understood to mean "mortal danger"). Furthermore, in light of the incident of Ula (note 131), several later authorities who cite R. Jonah or agree with his position feel it necessary to make several important distinctions which have the effect of attenuating R. Jonah's ruling: 1) In Menorat haMa'or, ner 2, kelal 3, helek 1, perakim 1 and 2, secs. 44 and 45, R. Isaac Abuhav permits praising a wicked individual in a life-and-death situation, provided he does not justify his wicked actions. 2) Others go one step further and differentiate between public approbation of wicked actions, which is forbidden even in life-threatening situations, and private hanufa. See Orhot Tsadikim (unknown rishon), Gate 24, Sha'ar haHanifot, helek 1 (this section is a restatement of Sha'arei Teshuva, ibid.); Yad haKetana, Hil. De'ot, sec. 10, no. 14 and Minhat Ani, note 16; R. Moses Bezalel Sinai, Torat haKena'ot, Sota 41b, s.v. "Kol ha-ma-hanif"; R. Hayyim Judah Segal Deutsch, commentary to Sefer Hareidim, Lo ta'ase min haTorah ha-teluyyot ba-pe ba-kane ve-efshar le-shamran be-khol yom, sec. 4, no. 48-Be'er Yehuda, note 8, s.v. "Od katav haTosafot." 3) Yad haKetana, ibid., sec. 13, Minhat Ani, note 15, suggests one further possibility, namely that hanufa is forbidden in cases where there is "only a slight chance" (hashash rahok) of mortal danger but permitted in cases of clear and imminent threat. 4) Finally, R. Moses Bezalel Sinai, ibid., and R. Eliyahu Rot, Sha'arei Teshuva ha-meFurash, sec. 188, HaRotse biTshuva, s.v. "Li-msor" and "she-he-henifu," argue that hanufa is forbidden in cases of "financial danger" (sakanat mamon)-and this is the "danger" referred to by R. Jonah-but is certainly permitted in cases of "mortal danger." The view of R. Jonah is also cited by R. Israel Meir haKohen Kagan, Hafeits Hayyim, Petiha, la'avin 16 and Be'er Mayyim Hayyim ad loc. This seems to contradict what he writes in Mishna Berura, O.H. end of sec. 196, where he permits praising even murder in cases of danger-unless he maintains one of the above distinctions. For a general discussion of hanufa, see Encyclopedia Talmudit, XVI, "Hanufa," p. 375.
It is unlikely that Rabbeinu Jonah agrees with Maharshal's position on ziyyuf haTorah (see discussion at note 123), since R. Jonah writes in Sha'arei Teshuva, Gate III sec. 52, that teaching Jewish law wrongly and incorrectly ("she-lo ka-dat ve-she-lo ke-halakha") violates ". . . before a blind individual, thou shalt not place a stumbling block" (Lev. 19:14). Nothing else is mentioned. See also Addendum, Part 4b.
(a) R. Jonathan haKohen of Lund, cited in Shita Mekubetset to Bava Kama 38a, s.v. "Shor shel Yisrael," clearly states that when necessary, halakha may be distorted in order to make it more acceptable to non-Jews.
(b) Rashi, Berakhot 43b, s.v. "ve-lo hi," indicates that the noted amora, Rav Papa, was embarrassed by an erroneous halakhic ruling he had made. In order to cover up his shame, he consciously fabricated a legal decision by his mentor Rava in support of his position, which he knew to be wrong (Cf. Tosafot, Rosh and Nimukei Yosef, s.v. "Garsinan," ad loc.)! Rashi, Avoda Zara 58a, s.v. "demei" (cf. Tosafot, ad. loc., s.v. "Ikla") indicates that Rava, too, presumably lied about a previous ruling to cover his shame. R. Levi Ibn Haviv, Resp. Maharalbah, sec. 147, s.v. "u-bar min dein" [Lemberg, 1865; p. 59 column 4], citing Rashi, suggests that such misrepresentations of halakha are permitted, to avoid shame. See also R. Hayyim Joseph David Azulai, Birkei Yosef, H.M. sec. 12, no. 12; R. Malachi haKohen, Yad Malakhi, Kelal 663, pp. 168b-169b; Sedei Hemed, Kelalim, Khaf, no. 8; and Shin, no. 28; Sefer Beit Aharon, III (Brooklyn NY: Deutsch Printing and Publishing, 1955), kelal "Omer Davar beShem Omro," siman 17, pp. 416ff. Interestingly, R. Abraham Isaac haKohen Kook, Igrot haRe'iya, II, no. 694 (28 Sivan 5674), suggests a creative explanation, such that no misrepresentation of halakha was involved. See also R. Abraham David Horowitz, Resp. Kinyan Torah beHalakha, VII, Y.D. sec. 74, no. 3.
(c) Likewise, the Talmud in Berakhot 27b records that R. Joshua lied about his position regarding the obligation to recite ma'ariv so as not to publicly contradict R. Gamliel, the Nasi. A similar situation occurred between R. Nahman and Ula (Bava Kama 12a). R. David haKohen Sakali, Resp. Kiryat Hana David, I, Hiddushim veLikutim, sec. 37, no. 2, and R. Ezekiel Landau, Tsiyyun leNefesh Haya, Berakhot 27b, end of s.v. "Amad," record such misrepresentations as perfectly legitimate-even though there was little more than a bit of unpleasantness and honor at stake. See, however, R. Joseph Hayyim, Ben Yehoyada, Berakhot 27b and Resp. Aderet Tiferet, note 123. As to why the issue of lying per se ("mi-dvar sheker tirhak") is not an issur, see R. Chaim Kanievsky, Masekhet Kutim 1:14, Me-taher note 30. See also infra, Addendum, Part 6.
(d) The Talmud in Berakhot 63a further recounts that the Israeli court, in an attempt to reassert its sole authority in determining the calendar, sent two young scholars to Babylonia to R. Hanina, who persisted in fixing the length of years and months. To undermine the authority of R. Hanina, these young colleagues forbade that which he permitted and permitted that which he forbade. Many authorities maintain that the young scholars paskened falsely and purposely misrepresented halakha to this end. See R. Menahem Azarya de Fano, Resp. Rama miFano, end of sec. 108, s.v. "ve-anahnu"; R. Samuel Eliezer Edels, Hidushei haMaharsha, ad loc.; R. Hayyim Palagi, Hafeits Hayyim, sec. 19, no. 22; R. Hayyim ben Atar, Heifets Hashem, ad loc. Other commentators argue, however, that the rulings of the pair were in the category of hora'at sha'a (a temporary abrogation or change of the law), presumably effected by the authority of the Sanhedrin or the leading scholar of the generation; hence, their rulings cannot be considered misrepresentations of Jewish law. See R. Jonathan Shteiff, Hadashim Gam Yeshanim, ad. loc., first interpretation; R. Jacob Schor, Mishnat Ya'akov, Birkat Ya'akov (Jerusalem: Mossad HaRav Kook, 1990) ad. loc.; see also Addendum, Part 4i. Finally, some commentators posit that the rulings of the young scholars were indeed accurate, though normally they should not have challenged R. Hanina publicly. See ad loc. the following commentaries: R. Elijah of Vilna, Imrei Noam, s.v. "Ki heikha"; R. Hayyim Joseph David Azulai, Petakh Einayyim; R. Jonathan Shteiff, Hadashim Gam Yeshanim, second interpretation; R. Joseph Hayyim, Ben Yehoyada; R. Jacob Emden (gloss, ad loc.); R. Joseph Saul Nathanson, Yad Sha'ul, sec 242, no. 23.
(e) The Talmud in Eruvin 13a indicates that for pedagogic reasons, R. Akiva lied in declaring that the halakha follows the view of the disciple of R. Yishmael. Similarly, in Zevahim 13a, R. Huna made up a non-existent kal va-homer-also for pedagogic reasons. In Yoma 23a/b we are told that R. Zadok misrepresented the laws of egla arufa in order to heighten the sense of mourning and re-sensitize the people to the value of life. (Regarding the latter case, see Meiri, Yoma 23a; R. Isaac Nunis Weiss, Si'ah Yitshak, Yoma 23a; R. Aharon Lichtenstein, Nahpesa Derakheinu veNahkora, Alon Shevut Bogerim, Tevet 5756, pp. 15-27. Several of the commentaries reinterpret the comments of R. Zadok such that there is no misrepresentation; see Ritva and Maharsha ad loc.).
(f) Megilla 9a records that the seventy sages sequestered by King Talmai for the purpose of translating the Torah deviated in several instances from the literal meaning of the text for fear of offending the king. Maharshal himself suggests that the action of the seventy sages was divinely inspired, or alternatively that they changed only words, not the intent. R. Elijah Rogeler, Resp. Yad Eliyahu, sec. 48, is unsatisfied with these answers and derives from this incident that ziyyuf haTorah is not grounds for martyrdom. He further argues that even Maharshal could be referring only to instances where there is a mere "doubt" (hashash) of danger.
(g) The Talmud in Yevamot 106a recounts the story of a childless widow (yevama) who was hesitant to undergo levirate marriage to her brother-in-law (yavam) for fear that he was interested only in her money. In order to outsmart the brother-in-law, R. Hiyya bar Abba told the yavam: "Halots la, u-vekhakh ata konesa (perform levirate divorce, and thereby you will marry her)." While R. Hiyya's reasons for lying were noble, even laudatory, this was a willful misrepresentation of halakha. Interestingly, Yam Shel Shelomo, Yevamot, sec. 12, nos. 30 and 31, discusses this story, including the issue of lying, but does not raise the question of ziyyuf haTorah. Note, however, that Maharshal may distinguish between misrepresenting the permissibility or prohibition of an action, and misrepresenting the result and/or effect of a given action. There was nothing prohibited in R. Hiyya's advising the yavam to do halitsa; the only ziyyuf here was about its consequence, i.e., whether halitsa can effect marriage.
(h) In the famous story recorded in Gittin 56a, Bar Kamtsa, in vengeful spite, maimed an animal sent to the Temple by the Caesar of Rome, rendering it forbidden to sacrifice. For fear of retribution from the Roman Empire, the rabbis wanted to sacrifice the animal anyway. R. Zekhariah ben Abkulas, however, prevented this by arguing that such an action might lead people to conclude that maimed animals are eligible as sacrifices. The rabbis then wanted to kill Bar Kamtsa as a pursuer (rodef); however, again R. Zekhariah cautioned that people might say that anyone who maims a sacrifice is liable for the death penalty. The Talmud closes with the words of R. Yohanan: that R. Zekhariah's overly pious concerns resulted in the destruction of the Second Temple. Contrary to the view of R. J. D. Bleich, note 123, nearly all the commentaries (vide infra) on this story indicate that life and death considerations should have guided the rabbis to both sacrifice the maimed animal and/or kill Bar Kamtsa-irrespective of any misrepresentation of halakha that might have occurred as a result. On Gittin 56a, see the following commentaries: R. Jacob Emden; R. Zvi Hirsch Chajes; R. Meir Schiff; R. Samuel Eliezer Edels (Maharsha); R. Jacob Reisher, Iyyun Ya'akov; R. Moses Sofer, Hiddushei Hatam Sofer; R. Hayyim Joseph David Azulai, Petakh Einayyim; R. Joseph Hayyim, Ben Yehoyada. In addition, see R. Elijah of Vilna, Divrei Eliyahu, Parshat Mishpatim, s.v. "Lo tihye"; R. Zev Einhorn, Pirush Maharzu, Eikha Rabba 4:3; Resp. Benei Vanim, I, Ma'amar 5.
(i) Gittin 62a indicates that in order to prevent an am ha-arets from defiling the ritual purity of halla, one is permitted to lie to the am ha-arets and state, "See here, if you touch the halla, your dough will return to a status of tevel."
(j) Bava Kama 30b discusses instances where someone causes damage with belongings left in a public thoroughfare. According to one view, these effects are legally forfeit, and whoever takes physical possession of them first can take legal ownership. Nevertheless, the Jewish court, if asked, will counsel against such action, "because of theft" (halakha ve-ein morin kein mi-shum gezel). Meiri understands the latter to mean that the court forbids such seizures-though actually permitted in the present case-because they might be viewed as giving license to theft (mi-shum tikun olam). Rashi (s.v. "be-halakha"), however, indicates that the court counsels against such action "by stating that it is forbidden because it constitutes theft." Prima facie, this seems to be a clear violation of ziyyuf haTorah.
(k) According to Rivan, cited by Tosafot, Bava Metsia 109b, s.v. "Me-salkinan" (the relevant talmudic discussion is actually found on 109a) and Tosafot haRosh, Bava Metsia 109a, s.v. "Me-salki le-hu," R. Yosef lied regarding the rights of a gardener's heirs to a share in capital gains in order to force them to accept his "generous" settlement offer without objection. See also R. Samuel Shtarshon, ad loc.; Be'ur haGra to H.M. sec. 329, no. 1.
(l) The Mishna in Keritut (1:7; 8a) records that R. Simeon ben Gamliel knowingly misrepresented the law by ruling incorrectly and leniently in order to lower the market price of sacrificial turtledoves. R. Israel Yacov Fisher, comment 10 of his approbation to R. Jacob Yehizkiyah Fisch, Titen Emet leYa'akov (Jerusalem, 1982), indicates that such misrepresentation was permitted since its purpose was to prevent future violations. It should be noted, however, that the classic commentaries ad loc., Rashi and Rabbis Ovadiah Bartenura, Yisrael Lipschitz (Tiferet Yisrael) and Pinhas Kehati, all suggest that this was a hora'at sha'a (a temporary abrogation or change of the law), effected by the authority of the leading scholar of the generation, and, hence was not misrepresentation. Vide infra, Addendum, Part 4i.
(m) Nahmanides records his stating during the disputation at Barcelona that one is not bound by comments and interpretations found in Aggada and Midrash; see Moses ben Nahman, Viku'ah haRamban, in Kol Kitvei haRamban, R. Chaim D. Chavel, ed. (Jerusalem: Mossad haRav Kook, 1963), I, pp. 302-320). The late nineteenth century Russian Rabbi, Moses Eliasberg, Shevil haZahav, p. 27 (cited in R. Chavel's notes to Kol Kitvei haRamban, ibid., p. 308, s.v. "sheAdam magid le-haveiro") suggests that Ramban consciously lied under pressure. Whether he did or not is a topic of much heated discussion (see Marvin Fox, "Nahmanides on the Status of Aggadot," J. of Jewish Studies 40:1, Spring 1989, pp. 95-109, and sources cited therein). In any case, according to R. Eliasberg's view, Ramban clearly misrepresented Jewish tradition, which, according to Maharshal, should have been grounds for martyrdom.
(n) Napoleon Bonaparte placed twelve queries before The Assembly of Jewish Notables, which included the outstanding talmudic scholar, R. David Sinzheim. Their responses, particularly regarding usury and intermarriage, were conscious misrepresentations of Jewish law, perpetrated because of the fear of reprisals. See Tama Diogene, "Collection des Ecrits et des Actes Relatifs au Dernier Etat des Individus Proffessant la Religion Hebraique," Contemporary English Translation and edition by F.D. Kirwan, 1807; Barukh Mevorakh, "Napoleon uTkufato," (Jerusalem: Mosad Bialik, 5728), p. 77 ff. In particular, compare the halakhic answers of R. Ishmael of Modena (ibid., p. 103 ff.) with those of the Assembly. See also R. Natan Raphael Auerbach, "Toledot haRid Sinzheim," which appears in the introduction to R. Sinzheim's "Minhat Ani" (Jerusalem: Machon Yerushalayim, 5748), I.
(o) In Resp. Tsits Eliezer, XIV, sec. 99, R. Eliezer Waldenberg permits a judge to willfully distort halakha and rule improperly in order to save his life ("mutar le-hatot et ha-din bi-mkom piku'ah nefesh"). Surprisingly, R. Waldenberg makes no mention of the view of Yam Shel Shelomo. See, however, R. Abraham Drori and R. Judah David Bleich, note 123.
(p) As discussed above, Addendum, Part 2, it is unlikely that Rabbeinu Jonah agrees with Maharshal's position on ziyyuf haTorah.
(a) Brief citations from Talmud and codes: Hullin 15a (where Rav was publicly stringent regarding food cooked on Shabbat but lenient for his students); Shabbat 139a (where the rabbis refused to reveal grounds for leniency in spreading a bed canopy-see R. Hananel ad loc.); Shabbat 153b (where the rabbis were publicly stringent regarding carrying in a public domain in segments of less than 4 cubits); Bava Kama 30b (where the court, if consulted, counsels against taking possession of a forfeit object on the grounds of theft-see Addendum, Part 3j); and Avoda Zara 59a (where R. Yohanan forbade the unlearned to eat lupines [turmisin] cooked by non-Jews). Similarly, Rama, O.H. sec. 317, no. 3, forbids opening a non-permanent stitch in front of the unlearned. See also Rama, Y.D. sec. 160, no. 16; Shakh, ad loc., no. 22; Resp. Rashba, I, sec. 98.
(b) In a lengthy letter to his relative, Rabbeinu Jonah of Gerondi, Nahmanides (Teshuvot ha-meYuhasot leRamban, no. 184) argues in favor of the permissibility of concubines. Nevertheless, he concludes his responsum by admonishing Rabbeinu Jonah not to permit the practice for fear that the laws of Nidda would not be observed and promiscuity would be encouraged. Cf. R. Jacob Emden, She'eilat Ya'aveits, II, sec. 15, and Getsel Ellinson, Non-Halachic Marriage (Tel-Aviv: The Dvir Co. Ltd., 1975), pp. 72-79, who questions the authenticity of this concluding reservation.
(c) R. Yair Bachrach, Resp. Havvot Ya'ir, no. 222, ruled against the recitation of kaddish by a daughter, lest it weaken the customs of Israel. See also text and notes 280-283, supra.
(d) In a letter appearing in the introduction to Yalkut Yosef, VII, R. Ovadiah Yosef suggests that although a mourner is permitted to dance at his own wedding, R. Jacob Ettlinger, Binyan Tsiyyon, sec. 139, forbade dancing, lest mixed dancing would result. A similar understanding is suggested by R. Gavriel Zinner, Nitei Gavriel-Hilkhot Aveilut: Dinei uMinhagei Hishtatfut beSimha, page 29, note 21. See discussion, Addendum, Part 6.
(e) R. Yehezkel Abramsky, HaPardes 30:1 (5716), pp. 1-4, reprinted in the introduction to Resp. Tsits Eliezer, IV, and again in his Sefer Hazon Yehezkel, III, Responsa, sec. 5, in a letter to the then President of the Union of Orthodox Rabbis of the United States and Canada (Agudath HaRabbonim), R. Israel haLevi Rosenberg, demonstrates that gelatin is permitted. He nevertheless maintains that it should be publicly prohibited since its non-kosher origins will confuse the unlearned.
(f) Late Chief Rabbi Isaac haLevi Herzog, Resp. Heikhal Yitshak, O.H. sec. 4, rpt. in Pesakim uKhtavim I, She'eilot uTshuvot beDinei O.H., sec. 14, urged the South African community not to change its Hebrew pronunciation-despite solid halakhic grounds to do so-for fear of playing into the hands of Reform Jewry.
(g) The late Chief Rabbi of Rehovot, R. Elimelekh Bar-Shaul, indicates that a Torah reading with berakhot is halakhically permissible on Yom haAtsma'ut. He nevertheless opposes it lest some view the new holiday as a bona fide Yom Tov and not put on tefillin. See R. Elimelekh Bar-Sha'ul, in Hilkhot Yom haAtsma'ut veYom Yerushalayyim, Nahum Rakover, ed. (Jerusalem: Misrad haDatot, 5733), p. 310.
(h) Taz, O.H. sec. 585, no. 5, Y.D. sec. 117, no. 1, and H.M. sec. 2 (at end) maintains that one cannot forbid that which the Torah has explicitly permitted. See also R. David Cohen, Gevul Ya'aveits (Brooklyn, NY: Mesorah Publications Ltd., 1986), "Kuntres Heter Me-furash baKatuv," pp. 70-111. Nevertheless, R. Aron Maged, Sefer Beit Aharon, VIII, s.v. "Ein le-ha-hakhamim la-asor davar ha-me-furash baTorah," sec. 27, pp. 158-160, cites many sources demonstrating that even where the Torah explicitly permits an action, the rabbis can forbid it le-mi-gdar milta ve-tsorekh ha-sha'a.
(i) According to R. Israel Yacov Fisher, in comment 10 of his approbation to Titen Emet leYa'akov, the incident of Keritut 8a (see Addendum, Part 3l) suggests that in extreme situations, one may rule leniently against accepted halakha for the purpose of preventing future violations (le-mi-gdar milta le-heteira). This also seems to be the view of several commentators regarding the incident of R. Hanina and the two young Babylonian scholars (Berakhot 63a; see Addendum, Part 3d). See R. Menahem Azariah De Fano, Resp. Rama miFano, end of sec. 108, s.v. "ve-anahnu"; R. Samuel Eliezer Edels, Hidushei haMaharsha Berakhot 63a; R. Hayyim Palagi, Hafeits Hayyim, sec. 19, no. 22; R. Hayyim ben Atar, Heifets Hashem, Berakhot 63a; and R. Jonathan Shteiff, Hadashim Gam Yeshanim, Berakhot 63a, second interpretation. Rosh, cited in Shita Mekubetset to Bava Batra 166b, seems to differ. R. Joel Teitelbaum (of Satmar), Resp. Divrei Yoel, Y.D. sec. 35, no. 4, argues that today we do not have the power of le-mi-gdar milta le-heteira. R. Fisher does not take note of the fact that, regarding both the cases of Berakhot and Keritut, some commentaries, ad loc., indicate that these were examples of hora'at sha'a (a temporary abrogation or change of the law) presumably effected by the authority of the Sanhedrin or the leading scholar of the generation and, hence, cannot serve as precedents for normative halakhic procedure. See, for example, R. Jonathan Shteiff, Hadashim Gam Yeshanim, Berakhot 63a, first interpretation; R. Jacob Schor, Mishnat Ya'akov, Birkat Ya'akov, Berakhot 63a; Rashi, Keritut 8a, s.v. "Nikhnas le-beit din"; Rabbis Ovadiah Bartenura, Yisrael Lipschitz (Tiferet Yisrael) and Pinhas Kehati, Mishna Keritut 1:7; R. Moses Ibn Habib, Kapot Temarim, Sukka 34b, s.v. "Tosafot, d"h ve-li-drosh"; R. Avigdor Kohen Zedek, cited by R. Zidkiyahu ben Abraham, Shibbolei haLeket, Hilkhot Lulav, sec. 355; and Sefer Beit Aharon, supra, Addendum, Part 3b, sec. 26, pp. 438ff. A similar approach is suggested by R. Barukh Frankel Te'omim, Resp. Ateret Hakhamim, E.H. sec. 29, in explaining Seder Eliyahu Rabba of Tanna deVei Eliyahu 4:1, where Moses attributes the command to kill the worshipers of the Golden Calf to God (Exodus 32:27), when in fact it was his own idea. (Regarding Tanna deVei Eliyahu, see also R. Reuben Margaliot, Margaliyyot haYam, Sanhedrin 89a, sec. 23.) Moreover, R. Jacob Ettlinger, Arukh leNer, Sukkot 34b, s.v. "Sham, d"h ve-li-drosh," indicates that such a hora'at sha'a-permitting the forbidden in order to prevent future violations-may be invoked only if the possible future violations are extremely serious, like those punishable by karet. R. Jacob Schor, Mishnat Ya'akov, Birkat Ya'akov (Jerusalem: Mossad HaRav Kook, 1990), Berakhot 63a (see Addendum, Part 3d), allows such a hora'at sha'a only where the unity of kelal Yisrael is seriously threatened.
(j) An interesting example is the requirement to locate the bima in the center of the shul. R. Moses Feinstein, Resp. Igrot Moshe, O.H., II, sec. 42, argues that R. Moses Sofer's stringency in this matter stemmed from his fear of Reform influences and was a case of le-mi-gdar milta. Where the desire to move the bima stems from other practical considerations (e.g., acoustics), it is permitted. In other words, where the concern is no longer valid, the geder is no longer applicable.
(k) The Late Chief Rabbi Isaac Herzog, Pesakim uKhtavim I, She'eilot uTshuvot beDinei Orah Hayyim, sec 32, argues that in theory, there are grounds to permit accepting a bequest from an apostate towards the construction of a synagogue. Nevertheless, R. Herzog leaves it up to the discretion of the local rabbi to forbid it in practice because of mi-gdar milta, lest the publicity of the receipt of such a donation ease the way to other acts of apostasy.
(l) See also Resp. Maharash Mohliver, sec. 6, s.v. "Hen emet"; Nefesh haRav, p. 180.
R. Moses ben Nahman (Nahmanides), end of commentary to Deut. 4:2, and R. Hizkiyah ben Manoah, Hizkuni, Genesis 3:3, while not referring to Maimonides explicitly, clearly apply bal tosif to an individual who claims that an action was commanded by God (in the Torah) when it was not. Nahmanides writes [Chavel translation]: "In my opinion, even if someone devised an independent commandment . . . he transgresses . . . . [The prohibition of not adding to the Torah does not forbid] whatever [laws] the sages have established in the way of a fence around the Torah, such as the secondary degrees of forbidden marriages-that activity of [establishing fences] is itself a requirement of the Torah, provided only that one realizes that these [laws] are a result of a particular fence and that they are not expressly from the mouth of the Holy One, Blessed be He, in the Torah." Cf., however, Nahmanides' comments on Maimonides' Sefer haMitsvot, Shoresh Rishon, s.v. "baRishona," where he states, "First, because it is customary for rabbis to refer to rabbinic matters as 'Torah' and strengthen them with biblical citations." Nevertheless, this may have been done only when it was common knowledge that the ordinances were in fact rabbinic. See also the related comments of R. Joseph B. Soloveitchik, supra.
R. Hizkiyah ben Manoah, Hizkuni, ibid., commenting on Eve's statement that God forbade even touching the tree of knowledge, cites the Talmud, Sanhedrin 29a, which describes this incident as an example of "he who adds detracts" (kol ha-mosif gore'a). R. Hizkiyah is troubled by the Talmud's criticism: after all, in what way is Eve's safeguard any different from subsequent rabbinic gezeirot? He suggests that Eve sinned in falsely attributing the source of the prohibition to the divine. This approach is, of course, in consonance with the view of Maimonides cited above. In fact, R. Joseph Babad, Minhat Hinukh, ibid., actually cites Sanhedrin 29a as proof to the view of Maimonides. R. Reuven Margoliot, Margaliyyot haYam, Sanhedrin 29a, no. 29 also suggests that Sanhedrin 29a supports Maimonides' position, but cites Avot deRabi Natan, chap. I, sec. 5 which indicates that it was Adam-not Eve-who erred. See also R. Hayyim Joseph David Azulai, Kisei Rahamim, Avot deRav Natan, ibid., perush, s.v. Adam ha-rishon and R. Menahem Kasher, Torah Sheleima, Genesis 3:3, nos. 13-15.
Additional posekim argue that it is forbidden to call a rabbinic edict a biblical prohibition because it violates bal tosif. See R. Zvi Hirsch Chajes, ibid.; R. Jacob Ibn Forno, ibid.; and R. Joseph Elijah Henkin, ibid. In Darkei Hora'a, ibid., R. Chajes specifically takes issue with the contention of R. Moses Sofer (responsum to R. Chajes published in Darkei Hora'a, ibid. and surprisingly absent from Resp. Hatam Sofer) that one may "strengthen" a biblical prohibition which is based only upon a negative commandment by claiming that it also violates a positive commandment. Other authorities, though, agree with Hatam Sofer provided there will be no practical halakhic consequence (e.g., no new obligation of lashes). Under such conditions, these scholars maintain that one may even upgrade a rabbinic prohibition to a biblical one. See Resp. Rashba, I, sec. 43; the commentary of R. Elijah Mizrahi to Exodus 12:16, s.v. "Afilu al yedei aherim" at end; R. Moses haKohen Ashkenazi, cited in Birkei Yosef, ibid.; Taharat haMayyim, Ma'arekhet Het, no. 42; R. Aron Maged, Sefer Beit Aharon, VII, s.v. "Ein la-asor ha-mutar," sec. 4, pp. 576-577. However, should a new obligation of lashes result from the upgrading, then bal tosif has been violated. See Sedei Hemed, Pe'at haSade, Ma'arekhet haAleph, no. 75. We note in passing that R. Sofer's position is somewhat surprising in light of his own strong stance elsewhere against all forms of lying. See Resp. Hatam Sofer, VI, sec. 59. Even in cases where the lying is permitted to maintain peace ("me-shanim mi-penei ha-shalom," Yevamot 65b), R. Sofer, citing the commentary of Nahmanides to Genesis 18:13, allows only 'halving' truths, not outright lying. Cf. Addendum, Part 6.
We turn now to the particular issue raised in the text at note 228, namely, does misrepresenting halakha and/or giving an erroneous reason or source for a prohibition involve violation of the prohibition against lying? R. Zvi Hirsch Chajes, Darkei Hora'a, siman 6, first footnote, argues that it is forbidden to call a rabbinic edict a biblical prohibition because it violates not only bal tosif (see Addendum, Part 5) but also "mi-dvar sheker tirhak"-"From untruthfulness, distance thyself" (Exodus 23:7). This is also the opinion of R. Chaim Soloveitchik of Brisk, cited in Nefesh haRav, p.178. R. Soloveitchik maintains that even Ra'avad (note 227 and Addendum, Part 5) agrees that "mi-dvar sheker tirhak" forbids the rabbis to claim that a rabbinic injunction is biblical. Accordingly, Rambam and Ra'avad disagree only whether it is permitted to be as stringent when dealing with a custom or rabbinic injunction as one would be were the prohibition biblical. R. Jacob Israel Kanievsky, Keraina deIggarta, letter 203, pp. 219-220, refuting the suggestion that it is forbidden to take part in elections in the secular State of Israel, writes: ". . . And your Honor should know that even to be zealous, it is forbidden to teach Torah not according to the halakha (Avot V:8), and that which is not true will not succeed at all." (Regarding the citation from Avot V:8, see note 232.) In an as-yet unpublished responsum to Aryeh A. Frimer, dated 7 Shevat 5756, Rabbi Haim David Halevy prohibits a posek from misrepresenting halakha and/or giving an erroneous reason for a prohibition for two basic reasons: (1) the biblical prohibition of "mi-dvar sheker tirhak" and (2) a total loss of trust in rabbinic authority would result should the truth become known (see note 231). See also the related opinions of Rabbis Ehrenberg, Rogeler and Sobel cited below.
Several posekim dissent, arguing, on various grounds, that "mi-dvar sheker tirhak" is not applicable to cases where halakha is misrepresented so as to prevent future violations of Jewish law. Some argue that the dispensation to modify the truth in order to maintain peace (me-shanim mi-penei ha-shalom, Yevamot 65b) also applies to misrepresenting halakha in order to maintain peace between kelal Yisrael and the Almighty (cf. end of Addendum, Part 5 and note 231). See R. Solomon Ephraim, Keli Yakar, Deut. 17:11, s.v. "Lo tasur" at end; R. Samuel Kalai, Resp. Mishpetei Shemuel, sec. 120, p. 157-cited by R. Hayyim Palagi, HeHafeits Hayyim, sec. 19, no. 30; R. Barukh Frankel Te'omim, Resp. Ateret Hakhamim, E.H. sec. 29; Resp. Torah liShma, sec. 371; R. Yehuda Herzl Henkin, Resp. Benei Vanim I, sec. 37, no. 12; Niv Sefatayyim, part 1, helek 3, sec. 3 and part 2, helek 3, sec. 3, citing Gittin 62a (see Addendum, Part 3i); R. Israel Yacov Fisher (Addendum, Part 3l and Part 4I). In a conversation with Aryeh A. Frimer and Noach Dear (March 8, 1996), Rabbi Zelig Epstein indicated that mi-dvar sheker tirhak refers to lying in court. Similarly, R. Chaim Kanievsky, Masekhet Kutim, 1:14, Me-taher, note 30, and conversation with Aryeh A. Frimer (February 20, 1995), maintains that if a posek believes an action should be prohibited because of mi-gdar milta, he may misrepresent the reason for or source of a prohibition; since there will be no change in the legal outcome, mi-dvar sheker tirhak does not apply. This may also be the opinion of R. Ovadiah Yosef, introduction to Yalkut Yosef, VII, and R. Gavriel Zinner, Nitei Gavriel-Hilkhot Aveilut: Dinei uMinhagei Hishtatfut beSimha, p. 29, note 21 (see also Addendum Part 4d), who argue that R. Jacob Ettlinger, Binyan Tsiyyon, sec. 139, forbade a mourner to dance at his own wedding-even though it was after sheloshim and clearly permitted-lest mixed dancing result. According to R. Yosef and R. Zinner, R. Ettlinger purposely gave the wrong reason for the prohibition because people tend to be much more careful about the laws of mourning than they are regarding mixed dancing.
R. Joshua Menahem Mendel Ehrenberg, Resp. Devar Yehoshua, I, addendum to sec. 19, no. 6 (see also V, Y.D. sec 12), demonstrates, however, that the consensus of posekim is that mi-dvar sheker tirhak applies in all cases, even if it is intended to promote a religious purpose (ve-afilu li-dvar mitsvah). See also Niv Sefatayyim, ibid., kelal 1. Similarly, R. Elijah Rogeler, Resp. Yad Eliyahu, sec. 61 and 62, chastises a colleague for lying in a decision, even though his intentions were noble. R. Solomon Sobel, Salma Hadasha, Mahadura Tinyana, Haftarat Toledot (cited in Titen Emet leYa'akov, ibid., sec. 5, no. 36), explicitly states that me-shanim mi-penei ha-shalom only allows one to change the facts, not the halakha. Both R. Jacob Ettlinger, Arukh leNer, Yevamot 65b, s.v. "she-Ne'emar avikha tsiva" and "Ko tomeru leYosef," and R. Reuben Margaliot, Kunteres Hasdei Olam, sec. 1061, at the end of his edition of Sefer Hasidim (Mossad haRav Kook: Jerusalem, 5724), maintain that me-shanim mi-penei ha-shalom allows one only to obfuscate by using language which can be understood in different ways, but not to lie; hence, misrepresenting halakhic reasons or sources would also be forbidden.
Relevant to our discussion is the case recorded in the Talmud in Sukka 34b. In an attempt to drive down prices on whole hadasim, the amora Samuel threatened to publicize as accepted law the lenient ruling of R. Tarfon, who allowed the use of hadasim ketumim (myrtles whose tops had been chopped off). This, despite the fact that in reality Samuel maintained that R. Tarfon's opinion was not the halakha. Ritva, ad loc., s.v. "Mai ta'ama" (authorship is sometimes erroneously attributed to Rashba) reinterprets the case because he refuses to accept that Samuel would lie, even though it was clearly li-dvar mitsvah. Regarding the misrepresentations of halakha described in Berakhot 63a and Keritut 8a, see Addendum, Part 4i. See also Hiddushei Hatam Sofer, Sukka, ad loc., who equates the case in Sukka 34b with that in Keritut 8a, suggesting that both were hora'ot sha'a and, hence not normative Judaism.
Another interesting example of misrepresentation is described by the Talmud, Menahot 36b. Rav Ashi is reported to have worn tefillin at night, contrary to normative halakha. When his student, Ravina, asked whether the rationale for this action was Rav Ashi's interest in keeping the tefillin safe, the latter responded in the affirmative. Nevertheless, Ravina indicates that this was in fact not Rav Ashi's true rationale, but rather that the mitsvah of tefillin continues into the night. Be'ur Halakha to O.H. sec. 30, no. 2, s.v. "ve-ni-mtse'u," indicates that this is an example of halakha ve-ein morin kein. Rav Ashi's misrepresentation was halakhically mandated, lest others follow his actions, put on tefillin, and fall asleep with them on. Note, however, that the above case is not a clear precedent for misrepresenting the rationale in cases of mi-gdar milta, for while Rav Ashi misrepresented the true reason for his action, the false reason was also valid and applicable.
Our final example appears in Mishna Avoda Zara (II:5; 29b; see also discussion on 35a). On being questioned by R. Ishmael as to the grounds for the prohibition on non-Jewish cheeses, R. Joshua presented several reasons which proved untenable upon analysis. The commentaries ad loc. make clear that R. Joshua was attempting to hide the true reason for the edict. From the talmudic discussion (ibid., 35a), it would seem that R. Joshua's misrepresentation was halakhically mandated, lest the rabbinic decree become undermined. Interestingly, R. Solomon ben Aderet, Resp. Rashba, I, sec. 43 argues that R. Joshua knowingly suggested that non-Jewish cheeses were biblically forbidden when he knew full well that they were prohibited merely by rabbinic decree. This case might well serve, then, as a precedent for misrepresenting the rationale, even upgrading the prohibition, in cases of mi-gdar milta. Nevertheless, R. Moses Sofer, Hiddushei Hatam Sofer (Makhon Hatam Sofer, Jerusalem: 5736), Avoda Zara 29b, s.v. "Amar R. Yehuda" (also appears in Derashot Hatam Sofer, I, 78a, s.v. "Ita baMishna") notes that the aforementioned Mishna surprisingly informs us that this discussion between R. Ishmael and R. Joshua occurred on the road. R. Sofer argues that R. Joshua misrepresented the rationale, specifically citing a biblical source, in order to cut highway discussion short and thereby prevent a potentially dangerous situation.
Some codifiers have suggested that in order to assure the acceptance of his decision, a decisor may falsely attribute his ruling to someone greater than he, provided he is absolutely convinced of its correctness. This is known in the halakhic literature as "le-hi-talot be-ilan gadol" (Eruvin 51a; Pesahim 112a). See Magen Avraham, O.H. sec. 156, no. 2; Tosafot Yom Tov and Tiferet Yisrael, Boaz, no. 2 to Avot 5:2 s.v. "veAl ma she-lo shama shamati"; Birkei Yosef, Y.D. sec. 242, no. 29; Sefer Beit Aharon, IX, "Im bikashta lei-hanek, hi-tale be-ilan gadol," pp. 606-607, and supra, Addendum, Part 3b; Niv Sefatayyim, kelal 7; R. Abraham David Horowitz, Resp. Kinyan Torah beHalakha, VII, Y.D. sec. 74; R. Ovadiah Yosef, Me'or Yisrael, II, Eruvin 51a; R. Aryeh Kaplan, "The Structure of Jewish Law," The Aryeh Kaplan Reader (New York: Mesorah Publications, 1983), pp. 211-224-see especially p. 217 and footnote 105. R. Moses Jehiel Weiss, Beit Yehezkel, p. 75, suggests that this is permitted only to prevent others from sinning. In any case, this does not necessarily mean that it is permitted to lie about the reasons for the ruling, merely its attribution. (This distinction is, of course, rejected by the posekim cited above who argue that the dispensation to modify the truth in order to maintain peace applies to misrepresenting halakha).
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